Kosher Prison Food Isn't Strictly for Kosher Prisoners

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

A federal appeals court has held that federal religious freedom law requires Florida to provide kosher meals to prison inmates. That’s no shock because the law is pretty clear. What’s more interesting is a subtle, related problem that the appeals court ducked: Who is entitled to get kosher meals? And can an inmate register for kosher food while continuing to eat non-kosher food on occasion?

The case started in 2012, when the Justice Department sued Florida. In 2010, the state had instituted a pilot program at one prison where kosher food was available. Prisoners were told to accept voluntary transfer to that prison if they wanted a kosher diet.

The Justice Department determined that the pilot program was inadequate under the Religious Land Use and Institutionalized Persons Act of 2000, one of the laws intended to remove most barriers to religious observance.

In response, Florida introduced a limited kosher meal option in 2013. It underwent several iterations, but in its present form, it consists of peanut butter, cereal, bread, sardines, cabbage, beans, carrots, crackers, and “an occasional piece of fruit,” all served cold. This food is all kosher.

Florida introduced the program grudgingly, accompanying the kosher food option with several legally fascinating conditions.

First, prisoners had to cite specific religious authorities that required them to eat kosher food to prove that they sincerely were burdened by its absence. If they could do so, they would qualify for the program, but only after a waiting period.

The sincerity requirement isn’t contained in the religious freedom law, which simply says that the government may not impose a “substantial burden” on a prisoner’s religious exercise. In an era when the Supreme Court interprets the U.S. Constitution to prohibit imposition of substantial burdens on religion, courts typically looked to an applicant’s sincerity. So the requirement doesn’t come from nowhere. And it seems reasonable that if the government is going to have to accommodate somebody’s religious belief, that the belief must be actual rather than invented.

Yet it’s not clear that sincerity should be measured by citation of specific religious sources. What if I am simply moved in my own soul to observe the kosher laws, without regard to any organized system of religion? It shouldn’t follow that I’m less entitled to free exercise of religion than someone who relies on a rabbi and can cite chapter and verse.

Then there’s a complicated question of whether I can sincerely demand kosher food even if I don’t always keep kosher. The state had a rule that an inmate who missed more than 10 percent of his kosher meals in a month would be kicked out of the program.

The state also created a rule specifying that a prisoner who “is discovered purchasing, possessing, or consuming food from the canteen or other source that violates the religious diet requirements” would be booted from the kosher program. For good measure, the state added that it would kick out anyone who bartered kosher food for non-kosher food.

Were these rules permissible? A federal district court ruled that they weren’t. But the Justice Department and Florida reached a settlement that reinstated the 10-percent rule as well as the zero-tolerance policy for inmates possessing or eating non-kosher food. Because neither side appealed that aspect of their settlement to the U.S. Court of Appeals for the 11th Circuit, the appeals court didn’t have to decide whether the rules were lawful.

A strong argument can be made that the district court was correct – and that the settlement between the federal and state authorities that currently exists is unlawful.

A person could have a sincere religious desire to uphold the kosher laws, yet do so only some of the time. Traditionalist rabbis would not officially sanction part-time kosher observance, of course. But there are plenty of religiously sincere Jews who keep kosher at home but not outside the home; or who keep kosher on Passover but not the rest of the year; or who, as Woody Allen once remarked, believe that the divine proscription of pork only applied to certain restaurants.

The federal-state settlement imposes Orthodox standards, qualifying inmates for kosher food only if they are religious absolutists. That isn’t consistent with religious freedom law. And that should be even more true for non-Jews who might feel religiously motivated to obey the kosher laws, yet might feel that their observance needn’t be absolute.

The appeals court was right to say that Florida must provide kosher meals under federal law. But should the case arise again, it should clarify that kosher meals can’t be limited to strictly kosher inmates under the law. Otherwise the protection of religious exercise would amount to religious discrimination.

And, it should be noted, it’s a pretty meager diet – not that mainline Florida prison food, which costs the state $1.89 per inmate per day as opposed to $3.55 per day for the kosher diet, is very appealing or nourishing either.

OK, maybe the last category isn’t all that sincere.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more